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1
Criminal Code and Civil Liability Amendment Bill
2007
Criminal Code And Civil Liability
Amendment Bill 2007
Explanatory Notes
Objectives of the Bill
The Bill seeks to:
· Amend section 328A of the Criminal Code to increase the maximum
penalties for the offence of dangerous operation of a vehicle causing
death or grievous bodily harm and to expand the existing aggravating
circumstances generally to include: travelling at excessive speed;
racing or speed trialling; and leaving the scene of the offence;
· Amend the Criminal Code by the insertion of a new offence of
identity fraud which prohibits a person from misusing another entity's
identification information; and
· Amend the Civil Liability Act 2003 to exclude the application of the
Act to all work injuries for which compensation is payable under
Queensland's workers compensation legislation, apart from recess and
journey claims, regardless of whether the injury is caused by an
employer or a third party.
Reasons for the Bill
Criminal Code
Section 328A
The Bill addresses growing community concern about dangerous driving
offences, particularly where death or serious injury results and alcohol,
drugs or speed are contributing factors. There has also been increasing
community concern about the incidence of hit-and-run traffic offences that
result in death or serious injury.
Obtaining or dealing with identification information
Technological advances in the use of information technology have seen a
corresponding growth in the crimes committed through the use of that
technology. Many of these crimes, including fraud and theft, are
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Criminal Code and Civil Liability Amendment Bill
2007
perpetrated through the use of false personal identification information.
The most notorious of these new offences is the practise of credit card
"skimming" where personal financial details are obtained through a variety
of methods including the use of electronic devices fitted to banks'
automatic teller machines, and then used to effect financial transactions
(often overseas) that result in individuals, financial institutions, insurers
and ultimately the community losing significant sums of money.
The issue of credit card skimming has been under the consideration of the
Standing Committee of Attorneys-General (SCAG) since April 2003, when
Ministers tasked the Model Criminal Code Officer's Committee (MCCOC)
with the development of model offences. The MCCOC Final Credit Card
Skimming Report was released in April 2006.
Credit card skimming is a specific example of the wider problem of
identity theft/fraud, for example, the use of identification documentation to
personate others. Such conduct can leave victims with a lost financial,
social or legal reputation that is difficult to recover. MCCOC
acknowledged that credit card skimming could be criminalised through a
wider identity theft offence.
There are a number of existing offences in the Criminal Code that are
relevant to the theft or misuse of personal identifying information
(including financial information). These offences include stealing, fraud,
forgery, uttering, computer hacking and misuse, and personation. However,
a potential gap exists where a person possesses, obtains or supplies another
person's personal identifying information with the intention of it being
used for a criminal purpose, but without then committing a substantive
offence, for example, where identity information is obtained in Queensland
with the intention that it be used to commit a fraud outside the jurisdiction.
Civil Liability Act
The Civil Liability Act 2003 was introduced as part of the Government's
broader personal injury law reform agenda with the aim of placing
downward pressure on insurance premiums. The Civil Liability Act 2003
caps general damages at $250,000 and places restrictions on the recovery
of some special damages, notably a cap on compensation for lost income at
three times average weekly earnings, limits on the calculation of
superannuation and a threshold before compensation for gratuitous services
can be recovered. Section 5 of the Civil Liability Act 2003 was inserted to
exclude work related injuries from the application of the Act.
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Criminal Code and Civil Liability Amendment Bill
2007
The amendment to the Civil Liability Act 2003 aims to redress the effect of
the Queensland Court of Appeal decision in Newberry v Suncorp Metway
Insurance Limited [2006] QCA 48 (Newberry), which was handed down on
3 March 2006. In Newberry, although the claimant was injured in a motor
vehicle accident while at work, the damages were assessed under the Civil
Liability Act 2003 because his claim was against a third party (the driver of
the other vehicle) and his employment was not a material ingredient to the
claim against the third party.
The intention of the amendment is to protect workers' rights by providing
that a common law claim for damages by a worker in factual situations
such as those in Newberry, will be assessed at common law, rather than
under the Civil Liability Act 2003. The amendment will reinstate the
Government's stated intention regarding the protection of worker's rights
under the Civil Liability Act 2003.
Achievement of the Objectives
The Bill amends section 328A to increase the maximum penalty for the
offence of dangerous operation of a motor vehicle causing death or
grievous bodily harm and expands the aggravating circumstances for the
offence generally.
The Bill amends the Criminal Code by the insertion of new section 408D,
Obtaining or dealing with identification information. The provision applies
to a person who obtains or deals with another entity's identification
information for the purpose of committing, or facilitating the commission
of, an indictable offence. The proposed provision is not limited to an
offence relating to credit card skimming as there are wider offences
committed over and above the fraudulent use of credit card details. Further,
the provision has been broadly drafted, to ensure it does not quickly
become obsolete with the development of technology.
The Bill amends section 5 of the Civil Liability Act 2003 so that the Act will
not apply in relation to any work injuries, apart from recess and journey
claims, whether or not the injured worker claims against their employer, a
host employer or a third party.
Estimated Cost for Government Implementation
Any costs in relation to the amendments to the Criminal Code will be met
within existing resources. There will be no implementation costs for
Government in relation to the amendment to the Civil Liability Act 2003.
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Criminal Code and Civil Liability Amendment Bill
2007
Consistency with Fundamental Legislative Principles
The amendment to the Civil Liability Act 2003 will commence
retrospectively in relation to a personal injury, or part of a personal injury,
caused on or after 6 November 2006. The Bill is drafted so that, in relation
to injuries occurring after that date, the rights of parties to proceedings that
have been progressed to trial or decided, or where a settlement agreement
has been reached, are unaffected.
Retrospective laws are generally passed to validate past actions, correct
defects in legislation or confer benefits retrospectively. As the Bill aims to
redress the Newberry decision and reinstate the Government's original
intention regarding the protection of workers' rights under the Civil
Liability Act 2003, it is considered that this degree of retrospectivity is
justified.
Consultation
Consultation on the proposed amendments to the Criminal Code was
undertaken with: the Chief Justice of the Supreme Court, the Chief Judge
of the District Court, the Chief Magistrate, Legal Aid Queensland, the
Director of Public Prosecutions, the Queensland Police Service, the
Department of Communities, the Department of the Premier and Cabinet,
Queensland Transport, the Department of Tourism, Fair Trading and Wine
Industry Development, the Australian Finance Conference and Abacus
Australian Mutuals.
Government departments and agencies including; the Department of
Employment and Industrial Relations, the Motor Accident Insurance
Commission, Queensland Treasury and the Department of Premier and
Cabinet have all been consulted on the policy objectives and on the drafting
of the provisions. No community consultation has been undertaken in
relation to the amendment to the Civil Liability Act 2003, but views of
major stakeholders are well known.
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Criminal Code and Civil Liability Amendment Bill
2007
Notes on Provisions
Part 1 Preliminary
Short title
Clause 1 provides that the Act's short title is the Criminal Code and Civil
Liability Amendment Bill 2007.
Commencement
Clause 2 provides that part 3 commences on 6 November 2006. The
remainder of the Bill commences on assent.
Part 2 Amendment of Criminal Code
Code amended in pt 2
Clause 3 provides that this part amends the Criminal Code.
Amendment of s 328A (Dangerous operation of a vehicle)
Clause 4 amends section 328A to expand the circumstances of aggravation
and increase the maximum penalty for dangerous driving causing death or
grievous bodily harm.
Subclause (1) renumbers section 328A (2)(b) as section 328A(2)(c).
Subclause (2) inserts a new section 328A (2)(b) which provides that an
offender is liable to a maximum penalty of five (5) years imprisonment if
he or she operates a vehicle dangerously and at the time is excessively
speeding (40 km/h over the prescribed speed limit) or taking part in an
unlawful race or speed trial. Thus, although the manner of driving and the
speed of driving have always been two essential matters of fact for the jury
to have regard to in a case of dangerous driving, if the prosecution can
prove, to the requisite standard, that the offence involved speeding at 40
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Criminal Code and Civil Liability Amendment Bill
2007
km/h or more over the prescribed speed limit, then the offender is liable to
the higher penalty.
Subclause (3) inserts a new section 328A (4). The amendment increases
from seven (7) years to 10 years, the maximum penalty for dangerous
driving causing death or grievous bodily harm. Further, it omits the
distinction in penalty based on the level of intoxication and provides that an
offender is liable to 14 years imprisonment if, at the time of the offence, the
offender:
· is adversely affected by an intoxicating substance; or
· is excessively speeding; or
· is taking part in an unlawful race or unlawful speed trial; or
· knows or ought reasonably know, the other person has been killed or
injured, and leaves the scene before a police officer arrives (other than
to obtain medical or other help for the injured person).
Although new section 328A (4) does not provide for a distinction in
penalty based on the level of intoxication, the amount of alcohol remains
relevant as a circumstance to consider when determining whether the
driving was in fact dangerous. Further, the level of intoxication is relevant
because under section 80(24A) of the Transport Operation (Road Use
Management) Act 1995 (TORUM), a blood alcohol reading over 0.15% is
conclusive evidence on a charge under section 328A of the Code that a
person was adversely affected by alcohol. For a lower concentration of
alcohol or for any other intoxicating substance, the fact of being adversely
affected must be proved.
Subclause (5) defines the terms `excessively speeding', `unlawful race' and
`unlawful speed trial'. The existing definition of `place' is omitted and
replaced with a new definition which clarifies that `place' does not include
a place being lawfully used to race or test vehicles.
Section 85 of TORUM provides the summary offences of participating in
an unlawful race or speed trial. Given that the act to be relied on to prove
the summary offence is the same act to be relied on to prove the
circumstance of aggravation of the dangerous driving offence, it is intended
that section 16 of the Criminal Code would apply to prevent a sentencing
court taking into account the circumstance of aggravation and the
application of the higher maximum penalty if the person had been
convicted and punished for the summary offence. Section 16 would equally
apply if an offender is convicted and punished for the dangerous drive with
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Criminal Code and Civil Liability Amendment Bill
2007
the relevant circumstance of aggravation and an attempt is made to punish
the offender under the summary charge.
Amendment of s 408D (Computer hacking and misuse)
Clause 5 renumbers section 408D and section 408E.
Insertion of new section 408D
Clause 6 creates the new offence of obtaining or dealing with identification
information.
The offence applies to a person who obtains (includes possess or makes) or
deals (includes supplies or uses) with another entity's (whether alive, dead
or fictitious) identification information for the purpose of committing, or
facilitating the commission of, an indictable offence. Pursuant to section 36
of the Acts Interpretation Act 1954 and its definition of `indictable
offence', the offence extends to the situation where a person misuses the
identification information for the purpose of facilitating the commission of
an offence outside of Queensland that would be an indictable offence if it
were committed in Queensland.
Subsection (7) provides a broad definition of `identification information' to
ensure the offence does not quickly become obsolete with the development
of technology.
Pursuant to subsections (3) to (6), a sentencing court may issue a certificate
to the other entity (that is, the entity whose identification information was
used) stating the offence, the entity's name and anything else the court
considers relevant for the entity's benefit. This will assist a victim of such
an offence to begin to repair damage to their reputation (example, credit
rating).
Part 3 Amendment of Civil Liability Act
2003
Act amended in part 3
Clause 7 provides that part 3 amends the Civil Liability Act 2003.
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Criminal Code and Civil Liability Amendment Bill
2007
Amendment of s 5 (Civil liability excluded from Act)
Clause 8 amends section 5 of the Civil Liability Act 2003 so that the Act will
not apply to a decision about liability or awards of damages for personal
injury if the harm resulting from the breach of duty is or includes an injury
for which compensation is payable under the Workers Compensation and
Rehabilitation Act 2003 or the repealed WorkCover Queensland Act 1996,
apart from injuries pursuant to ss.34(1)(c) and 35 of the Workers
Compensation and Rehabilitation Act 2003 and ss.36(1)(c) and 37 of the
repealed WorkCover Queensland Act 1996.
Subclause (3) inserts three new subsections into section 5 of the Civil
Liability Act 2003.
The new subsection (2) clarifies that for the purpose of s.5(1), as
renumbered, it is immaterial whether compensation for an injury is actually
claimed under the relevant Workers' Compensation Act or whether
entitlement to seek damages is regulated by that Act.
The new subsection (3) provides that to remove any doubt, it is declared
that a breach of duty mentioned in s.5(1), as renumbered, includes a breach
of duty giving rise to a dependency claim. "Dependency claim" is defined
in schedule 2 of the Civil Liability Act 2003.
The new subsection (4) clarifies that compensation under a relevant
Workers' Compensation Act includes the payment of medical expenses for
medical treatment or attendance, and funeral expenses. The subsection
also provides a definition of "relevant Workers' Compensation Act".
Insertion of new ch 5, pt 5
Clause 9 inserts a new part 5 (Transitional provisions for Criminal Code
and Civil Liability Act 2007) into the Civil Liability Act 2003, comprising
of section 83 (Personal injury to which the amendment s.5 extends as a
result of amendment).
Subsection (1) of the new section 83 declares that the amended section 5
has effect to disapply the Civil Liability Act 2003 to a decision, under
section 5, in relation to personal injury only if the personal injury, or any
part of it, is or was caused on or after 6 November 2006.
Subsection (2) ensures that the amended section 5 will not apply to a
decision in relation to a personal injury, under section 5, if before the date
of assent of the amending Act, the parties have entered into a settlement
agreement in relation to damages, a trial in relation to the personal injury
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Criminal Code and Civil Liability Amendment Bill
2007
has started but final relief has not been granted by the court or final relief in
relation to the personal injury has been granted by a court.
Subsection (3) provides that section 5, as in force before 6 November 2006,
continues to apply in relation to a decision mentioned in subsection (2).
Subsection (4) defines "amending Act" and "final relief".
This will ensure that the Act will not apply to the assessment of liability or
damages in relation to a personal injury provided any part of the injury is
caused after the date of introduction.
© State of Queensland 2007